tarn/ 

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.onjsioN 


V 


OF  TUE 
5    ,- 


SUPREME  COURT  OF  APPEALS  OF  VIRGRIA 


IVx)  TU 


LIABILlTY/TCf  JIILITAM  SERVICE 

-ni."   Ttl  I-  ^^ 


^—X 


-in-  THi: 


rillNOIPALS  OF  SUBSTITUTiLS, 


.liiAX  Ol'  'iilW  Vii:i^liv^/.  ■.tj:;a:e 


RICHMOND 


>  i 


^mU%^ 


Tr.lx 


> 


SUPREME  COURT  OF  APPEALS  OF  VIRGINIA. 


Or>IITIOjSr. 


BUR|L0UG1LS   VS.    PeYTOX,      "l 

*/     ■'  /  /a-tid  \0n  habeas  corpus. 

Abrahams  vs.  Peyton,     j 

The  returns  having  been  made  Avithout  reference  to  the  recent  act  of 
congress  suspending  tlie  privilege  of  tlic  Avrit  of  habeas  corpus,  in  cer- 
tain cases,  and  the  respondent  not  asking  leave  to  amend  them,  and  rely 
upon  that  act ;  but  on  the  contrary,  stating  that  he  asserts  no  right  un- 
der it  to  hold  the  petitioners  in  cuf^tody,  the  court  does  not  consider  it 
necessary  to  decide  any  question  which  might  be  raised  under  said  act, 
and  will  proceed  to  consider  these  cases  irrespective  of  it. 

Although  the  court  has,  more  than  once,  acted  upon  questions  arising 
under  the  acts  of  congress  approved  on  tlie  IGth  day  of  April  18G2, 
and  on  the  27th  day  of  September  1802,  commonly  callcd'the  conscription 
acts,  it  has  never  until  now  been  called  on  to  decide  upon  their  constitu- 
tional validity,  that  liaving  been  heretofore  either  expressly  or  tacitly 
conceded.  But  the  question,  Avhether  congress  had  the  power  under 
the  constitution  to  pass  such  acts,  is  noAV  raised,  and  as  it  is  of  the 
highest  public  importance,  it  is  proper  that  it  should  receive  the  most 
careful  and  deliberate  examination.  In  deciding  it,  considerations  of 
expediency  and  policy  cannot  be  permitted  to  control  our  judgment. 
AVe  must  expound  the  constitution  according  to  what  appears  to  be  its 
true  meaning  ;  and  if  it  be  clear  that  no  power  to  pass  the  acts  in  ques- 
tion has  been  conferred  by  it,  we  are  bound  to  dechxrc  them  void  and  of 
no  effect,  however  disastrous  may  be  the  consequences  of  our  decision. 

It  is  said  that  congress  cannot,  under  the  grant  of  the  power  to  raise 
armies,  place  by  force  and  at  their  own  discretion,  the  citizens  of  a  state 
in  th-c  ranks  of  the  army  of  the  Confederate  States:  that  a  power  to 
do  so  would  be  despotic  in  its  nature  and  fur  greater  and  more  danger- 


ous  than  any  possessed  by  the  gover^jment,  subjec^ii^^^  i'fdbes  me 
personal  freedom  of  every  citizen  to  arbitrary  discretion.  And  more- 
over, that  it  ^YOuld  be  inconsistent  with  the  rights  of  the  states:  putting 
their  very  existence  at  the  mercy  of  the  confederate  government.  That 
a  mere  general  grant  of  the  poT\er  to  raise  armies,  without  specif^ang 
the  mode  in  which  they  are  to  be  raised,  cannot  be  held  to  confer  an  au- 
thority so  repugnant  to  the  spirit  of  free  institutions,  the  principles  on 
which  our  constitution  rests,  and  the  rights  secured  by  it. 

The  power  of  coercing  the  citizen  to  render  military  service  for  such 
time  and  under  such  circumstances  as  the  government  may  think  fit,  is  in- 
deed a  transcendent  power;  but  so  far  from  being  inconsistent  with  liberty, 
it  is  essential  to  its  preservation,  A  nation  cannot  foresee  the  extent  of 
the  dangers  to  vrhich  it  may  be  exposed.  It  must,  therefoi'-,  grant  to  its 
government  a  power  equal  to  avery  possible  emergency  :  and  this  can 
only  be  done  by  giving  to  it  the  control  of  its  whole  military  strength. 
The  danger  that  the  power  may  be  abused,  cannot  render  it  proper  to 
withhold  it,  for  it  is  necessary  to  the  national  life.  The  hazard  of  abuse 
should  be  guarded  against  by  so  framing  the  government  as  to  render  it 
unlikely  that  it  will  use  the  power  oppressively. 

The  real  question  for  our  consideration  then,  is  not  whether  the  power 
exists,  but  tvhere,  it  exists.  Has  it  been  conferred  on  the  confederate 
government,  or  is  it  retained  by  the  states  ?  In  its  effects  upon  the  in- 
dividual personally,  the  act  of  compelling  him  to  render  the  service,  is 
the  same  whether  it  is  performed  by  the  state  or  by  the  confederate 
government.  The  question,  as  to  which  of  them  should  exercise  the 
authority,  relates  merely  to  the  proper  distribution  of  political  power 
between  the  two  governments.  And  the  idea  that  first  suggests  itself 
is,  that  it  ought  to  be  placed  in  the  hands  of  the  one  which  is  charged 
with  the  duty  of  providing  for  the  defence  of  the  country  :  for  a  govern- 
ment "from  whose  agency  the  attainment  of  any  end  is  expected,  ought 
to  possess  the  means  by  which  it  is  to  be  attained." 

The  clauses  of  the  confederate  constitution,  relating  to  the  military 
power  and  its  exercise,  have  been  adopted  without  change  from  the  con- 
stitution of  the  United  States — the  amendments  to  the  latter  being  in- 
serted in  the  body  of  the  former.  Whatever  therefore,  throws  light 
upon  the  meaning  of  the  constitution  of  the  United  States  on  this  point, 
throws  equal  light  upon  the  meaning  of  ours. 

It  is  well  known  that  the  Union  of  the  colonies  was  formed  for  the 
purpose  of  combined  resistance  t(j  the  oppressions  of  the  mother  coun- 
try.    Delegates  from  the  several  colonies  constituted  a  congress,  which 


assumed  the  conduct  of  the  war  in  the  name  and  on  behalf  of  all  the 
colonies,  which  soon  became  the  United  States  of  America.  But  the 
congress  could  exercise  the  power  of  compelling  citizens  to  serve  in  the 
army  only  tliroiigh  the  intervention  of  the  states,  by  means 'of  requisi- 
tions upon  them  for  their  respective  quotas  of  men ;  and  being  unable 
to  enforce  compliance  with  these  requisitions,  it  was  found  impossible  to 
r;iiso  an  army  sufficient  for  the  vigorous  prosecution  of  the  war. 

Tliis  difficult}^,  which  had  been  so  painfully  felt  throughout  the  con- 
test, and  which  indeed  put  to  serious  harvard  tlie  success  of  the  cause, 
was  one  of  the  chief  reasons  urged  in  favor  of  tlie  change  of  the  form 
of  government,  effected  b}''  the  adoption  of  the  constitution  of  the  ■> 
United  States.  It  was  insisted  that  the  government,  having  the  power 
of  determining  on  peace  and  war  and  charged  Avith  the  duty  oArovid- 
ing  for  the  common  defence,  should  be  invested  with  power  commensu- 
rate with  that  end,  and  that  this  could  only  be  done  by  abandoning  the 
system  of  requisitions  upon  the  states  and  authorizing  the  federal  gov- 
ernment to  act  directly  upon  individuals.  Tliese  views  prevailed,  the 
constitution  being  framed  in  accordance  with  them. 

It  will  be  observed  that  a  broad  distinction  is  made  in  the  constitution 
between  the  ^'militia"  and  the  ^^  armies''  referred  to  in  it:  the  powers 
conferred  on  congress  and  denied  to  the  states,  in  reference  to  the  one, 
being  widely  different  from  the  powers  conferred  and  denied  in  reference 
to  the  other.  And  indeed,  the  two  words  could  not  have  been  used  to 
convey  the  same  idea.  An  army  is  a  body  of  men  whose  business  is 
war:  the  militia,  a  body  of  men  composed  of  citizens  occupied  ordina- 
rily in  the. pursuits  of  civil  life,  but  organized  for  discipline  and  drill, 
and  called  into  the  field  for  temporary  military  service  when  the  exi- 
gencies of  the  country  require  it. 

The  experience  acquired  during  the  revolutionary  war  had  demon- 
strated what  indeed  all  previous  experience  had  taught,  that  however 
valuable  a  militia  may  be,  it  is  unable  to  contend  permanently  and  suc- 
cessfully with  veteran  troops  ;  and  that  it  would  be,  to  the  last  degree, 
unsafe  to  trust  to  it  exclusively  for  the  defence  of  the  country.  It  was 
Avell  known  that  a  regular  army  wotild  be  absolutely  indispensable  in  a 
protracted  contest  vrith  a  powerful  nation.  Accordingly,  in  spite  of  the 
jealousy,  inherited  from  their  English  ancestors,  against  standing  armies, 
the  framers  of  the  constitution  gave  to  congress  the  power  "to  raise 
and  support  armies."  There  is  certainly  nothing  in  the  terms  of  the 
grant  to  restrict  congress  to  voluntary  enlistments  as  a  means  of  raising 
armies.      Nor  docs  auj   sufficient  reason  appear  why  such  restriction 


6 

should  have  been  imposed.  The  experience  of  the  revolution  had  shown 
that  it  was  necessary  to  resort  to  compulsion  to  fill  the  ranks  of  the 
army.  This  compulsion  had  not,  it  is  true,  been  applied  by  the  federal 
government;  but  that  was  because  it  had  no  power  to  resort  to  it,  being 
confined  to  requisitions  upon  the  states.  The  states  had  the  power,  and 
in  compliance  with  the  requisitions  made  upon  them  by  congress,  con- 
tinually exercised  it,  not  for  the  purpose  of  bringing  out  the  militia 
merely,  but  for  the  purpose,  also,  of  filling  the  ranks  of  the  regular  anny, 
when  voluntary  enlistments  fell  short  of  the  number  to  be  furnii<hcd  for 
it.     See  3IarshalVs  Life  of  Wasliington,  vol.  4,  p.  241. 

Instances  of  such  legislation  are  to  be  found  on  tlie  statute  book  of 
this  state;  In  May  1777,  an  act  was  passed  "for  the  more  speedily 
complejfcg  the  quota  of  troops  to  be  raised  in  this  commonwealth  for 
the  continental  army  and  for  other  purposes,"  in  which  it  was  provided 
that  if,  before  the  10th  day  of  August  1777,  a  sufficient  number  of  men 
should  not  have  been  enlisted  to  make  up  the  quota  required,  the  defi- 
ciency should  be  made  up  by  drafts  from  the  militia ;  and  that  each 
man  so  drafted  should  be,  "to  all  intents  and  purposes,  considered  as  a 
regular  soldier,"  and  should  serve  as  such  for  three  years,  if  the  war 
should  so  long  continue.  See  9  Henning's  Statutes  at  large,  p.  275.  See, 
also,  the  same  volume  of  Henning,  p.  337,  and  vol.  10,  id.,  ps.  82,  214, 
259,  333,  and  volume  11  id.,  p.  14,  for  instances  of  similar  legislation. 

Other  instances  might  doubtless  be  pointed  out ;  but  these  are  amply 
sufficient  to  put  it  beyond  doubt  that  compulsory  drafting  w^as  an  ordi- 
nary means  used  for  filling  the  ranks  of  the  regular  continental  army. 
This,  of  course,  was  well  known  to  the  framers  of  the  constitution  of 
the  United  States.  If  it  had  been  their  design  to  restrict  congress  to 
voluntary  enlistments  as  the  means  of  raising  armies,  is  it  at  all  probable 
that  they  would  have  failed  so  to  declare  in  express  terms  ?  In  grant- 
ing the  power  "to  raise  armies,"  Avithout  any  words  of  limitation  or  re- 
striction as  to  the  mode  to  be  employed,  they  must  be  understood  as  in- 
tending that  the  power  should  be  exercised  in  an}''  and  all  of  the  modes 
which  had  been  previously  employed  by  the  states.  Full  power  to  make 
war  was  vested  in  the  federal  government.  Of  course  it  could  not  have 
been  intended,  if  an  offensive  war,  necessary  for  the  assertion  of  the 
rights  or  vindication  of  the  honor  of  the  nation,  should  be  undertaken, 
to  withhold  from  the  government  the  means  of  prosecuting  it  with  suc- 
cess, by  denying  to  it  the  use  of  any  troops,  except  such  as  might  be 
obtained  by  voluntary  enlistment.  Yet  this  was  done,  if  the  power  to 
use  compulsion  to  till  the  r^nks  of  the  array  was  not  conferred   on   con- 


grcss  ;  for  tlie  militia  can  be  called  out  only  for  the  purpose  of  ex^ 
ecuting  the  laws,  suppressing  insurrections  or  repelling  invasions. 

But  it  is  said  that  it  docs  not  appear  that  any  objection  was  made,  at 
the  time  of  the  adoption  of  the  constitution  of  the  United  States,  to  the 
clause  granting  the  power  to  raise  armies,  on  the  ground  that  it  gave  to 
congress  the  power  of  conscription,  and  that  it  is  incredible  that  a 
power  so  vast  and  dangerous  would  have  passed  without  objection,  if  it 
had  been  then  supposed  to  be  possible  that  it  would  ever  be  claimed  by 
an}--  one  that  such  power  was  conferred.  It  will  hereafter  be  shown 
that  the  failure  to  make  the  objection  may  be  accounted  for  on  other 
grounds  than  the  one  suggested  ;  but,  however  this  may  be,  it  is  entitled 
to  not  the  slightest  weight  in  determining  the  construction  of  the  consti- 
tution of  the  Confederate  States.  When  that  constitution  was  adopted, 
it  was  well  known  that  the  power  in  question  had  been  asserted  to  exist 
under  the  constitution  of  the  United  States  by  many  statesmen  whose 
opinions  had  always  been  received  with  the  utmost  respect,  especially 
in  the  southern  states  of  the  late  Union. 

In  October  1814,  Mr.  Monroe,  who  was  then  secretary  of  Avar  under 
the  administration  of  Mr.  Madison,  addressed  a  letter  to  Mr.  Troup  of 
Georgia,  as  chairman  of  the  military  committee  of  the  house  of  repre-^ 
sentativcs,  in  which  he  proposed  four  diflferent  plans  for  organizing 
the  forces  of  the  United  States.  The  first  of  these  plans,  and  the 
one  for  which  he  expressed  his  preference,  proposed  that  the  army  should 
be  raised  by  draught  from  the  free  male  population  of  the  United  States, 
between  18  and  45  years  of  ago,  and  he  entered  into  a  full  examination 
of  the  (question  as  to  the  constitutional  right  of  congress  to  compel  citi- 
zens to  serve  in  the  army,  coming  to  the  conclusion  that  there  was  no 
doubt  of  the  existence  of  such  right.  Mr.  Troup,  as  chairman  of  the 
committee  of  military  affair.-:-,  reported  a  bill  in  conformity  with  the  first 
plan  recommended  by  Mr.  Monroe  ;  but  it  was  never  acted  upon — a  bill 
upon  a  different  plan  Im-ing  been  passed  by  the  senate  and  sent  to  the 
liouse,  where  it  was  amended  in  certain  particulars,  in  reference  to  which 
no  agreement  was  had  between  the  house  and  senate,  when  the  treaty 
of  peace  Avith  Great  Britain  rciulercd  the  passage  of  any  bill  unneccs- 
sai'y,  and  the  Avhole  subject  was  dropped.  But  the  proposition  of  Mr. 
Monroe  to  raise  men  by  conscription  (as  it  Avas  theti  designated)  led  to' 
n^uch  discussion,  in  Avhich  the  right  was  earnestly  asserted  by  some,  and  as 
earnestly  denied  by  others — those  asserting  it,  belonging  generally  to  ther 
states'  rights  party.  See  Annals  of  Congress — 13  Con.,  ]814-'15,  vol.  3/ 

This  is  not  referred  to  as  settling  conclusively  the   true  construe- 


tion  of  the  constitution  in  tliis  particular  ;  but  it  iiliows  that  the  framers 
of  the  constitution  of  the  Confederate  State;  did  not  agree  in  opinion 
with  those  who  think  that  the  power  in  question  is  fraught  with  danger 
to  the  liberties  of  the  citizen  or  the  rights  of  the  states,  or  they  would 
have  taken  care  to  use  language  which  would  leave  no  doubt  that  they 
did  not  intend  to  confer  it,  instead  of  retaining  that  Avhich  had  been 
construed,  by  many  of  the  wisest  statesmen  under  the  government  of 
the  United  States,  to  give  it. 

But  it  is  impossible  that  it  could  have  been  supposed,  at  the  time  of 
the  adoption  of  the  constitution  of  the  United  States,  that  it  Avould 
never  be  claimed  by  any  one  that  it  conferred  this  power ;  for  such  Avas 
the  construction  of  the  constitution  in  the  papers  of  the  Federalist,  writ- 
ten with  the  view  of  inducing  the  people  of  the  states  to  adopt  it,  and  re- 
commending it  to  them  because  it  invested  the  federal  government  "with 
full  power  to  levy  troops  ;  to  build  and  equip  fleets  ;  and  to  raise  the  reve- 
nues which  will  be  required  for  the  support  of  an  army  and  navy,  in  the 
customary  and  ordinary  modes  practised  by  other  governments."  'Fed- 
eralist, No.  23.     See,  also,  idem,  from  No.  23  to  No.  28,  inclusive. 

The  failure  to  make  special  objection,  at  the  time,  because  of  the  grant 
to  congress  of  the  pov/er  of  conscription,  is  not  surprising. 

There  was  no  serious  reason  to  apprehend  that  a  government,  design- 
ing to  overthrow  the  liberties  of  the  people,  would  raise  an  army  for 
the  purpose  by  a  conscription  of  the  very  people  whose  rights  were  to 
be  assailed ;  and  it  was  obvious  that  if  it  should  have  the  folly  to  do  so, 
the  army,  v/hca  raised,  would  be  the  most  efficient  instrument  that  could 
be  devised  for  the  defeat  of  the  object  in  view. 

The  danger  really  apprehended,  from  the  grant  of  the  power  to  raise 
and  support  armies,  was  that  the  federal  gover;imcnt  would  be  enabled 
to  raise  and  keep  in  its  pay  an  army  of  mercenary  troops,  Avitli  no  in- 
terests in  common  with  the  people,  which  might  be  used  for  the  over- 
throw of  tneir  liberties  and  the  destruction  of  wle  rights  of  the  states. 
It  was  to  this  danger  that  the  objections  pointed.  It  was  guarded 
against  by  adding  to  the  grant  of  the  power  to  raise  and  support  armies, 
a  proviso  that  "  no  appropriation  to  that  use  should  be  for  a  longer  pe- 
riod than  two  years,"  thus  requiring  the  consent  of  every  new  congress 
to  the  continuance  of  an  appropriation  for  the  support  of  the  arm}^.  It 
was  not  deemed  safe  to  go  further  than  this  in  limiting  the  pov/cr  of 
congress  on  the  subject.  A  proposition  to  limit  the  number  of  the 
army  to  be  raised,  was  rejected,  because  it  Avas  impossible  io  I'lHv  >  c 
Avhat  number  the  exigencies  of  the  country  might  require. 


9 

The  objection  to  permitting  a  standing  army  to  be  kept  up  in  time  of 
peace  was  disregarded,  because  when  it  was  conceded  that  armies  were 
necessary  to  protect  the  country  from  foreign  aggression,  it  was  mani- 
fest that  it  ATOuld  be  unwise  to  withhokl  the  power  to  raise  them  until 
after  hostilities  had  actually  commenced.  When  it  was  resolved  that 
the  federal  government  should  be  entrusted  with  the  common  defence, 
it  followed,  as  a  corrolary,  that  it  ought  to  be  '-invested  with  all  the 
powers  requisite  to  a  complete  execution  of  its  trust."  It  was  wisely 
determined,  therefore,  "  that  there  should  be  no  limitation  of  that  au- 
thority which  is  to  provide  for  tlie  defence  and  protection  of  the  com- 
munity, in  any  matter  essential  to  its  efficacy,  that  is  in  any  manner  essen- 
tial to  the  format  1071,  direction  or  support  of  the  national  forces.''  Fed., 
No.  23. 

As  has  been  already  stated,  experience  had  shown  that^the  exercise  of 
compulsion  Avas  necessary  to  raise  an  army  of  sufficient  size  for  the  ne- 
cessities of  the  country  in  time  of  war.  It  had  been  habitually  applftd 
by  the  states  in  the  war  from  which  the  country  had  just  emerged. 
What  then  could  be  more  natural  or  proper  than  to  entrust  this  power 
to  the  federal  government,  along  with  the  other  powers  confided  to  it  ? 

Why  should  it  be  excepted  from  the  grant  ?  Such  exception  would 
be  opposed  to  the  principle  on  which  the  grant  was  founded,  and  might,  at 
a  time  of  critical  danger  to  the  country,  render  the  grant  itself  nugatory. 

The  power  to  raise  armies  by  conscription  is  less  dangerous  to  the 
liberties  of  the  people  than  is  the  power  of  raising  them  by  voluntary 
enlistment.  An  improper  exercise  of  the  power  of  conscription  could 
not  fail  to  excite  at  once  the  indignant  opposition  of  the  people,  while 
an  army  might  be  improperly  increased  by  voluntary  enlistments, 
without  attracting  much  popular  attention  ;  and  one,  thus  raised,  would, 
as  has  been  shown,  be  made  more  dangerous  to  the  rights  of  the  states 
and  the  liberties  of  the  people  than  the  one  raised  by  conscription. 

It  is  said,  however,  that  the  absence  of  a  provision  requiring  the 
power  of  conscription  to  be  exercised  equally  and  uniformly,  shows  that 
it  was  never  designed  to  be  conferred  upon  congress ;  for,  without  some 
such  limitation,  congress  may  act  most  unjustly  and  oppressively,  dis- 
tributing the  burden  of  raising  an  army  unequally  between  the  different 
states;  and  that  any  state  is  liable  to  have  its  whole  arms-bearing  popu- 
lation withdrawn  from  it  and  carried  oil'  to  any  part  of  the  world,  in  the 
ranks  of  the  army. 

To  this  it  may  be  answered,  that  this  power,  like  all  others,  is  un- 
questionably liable  to  abuse,  though  it  does  not  seem  probable  that  the 


10 

attempt  would_ever  be  made  to  abuse  it  in  the  manner  suggested.  The 
protection  against  its  abuse  in  this  or  any  other  manner,  is  to  be  found 
in  the  responsibility  of  congress  to  the  people,  ensured  by  their  short 
tenure  of  office,  and  in  the  reserved  right  of  each  state  to  resume  the 
powers  delegated  to  the  confederate  government  whenever,  in  her  judg- 
ment, they  are  perverted  to  the  injury  or  oppression  of  her  people. 

Again,  it  is  objected  that  if  the  authority  to  raise  armies  gives  to  con- 
gress the  right  of  compelling  citizens  to  serve  as  soldiers,  it  embraces 
the  whole  war  power,  so  far  as  relates  to  the  raising  of  men,  and  not 
only  renders  the  provision  in  reference  to  the  militia  superogatory,  but 
enables  congress  to  destroy  the  militia  itself,  by  absorbing  into  the  army 
all  the  men  who  compose  it.  And  it  is  argued  that  it  must  therefore  be 
inferred  that  the  right  of  conscription  does  not  exist,  as  it  cannot  be 
supposed  that  it  was  intended  to  confer  power  upon  congress  to  destroy 
the  militia  of  the  states. 

It  is  true  that  the  constitutioii  does  recognize  the  militia,  and  provide 
for  using  it,  as  well  as  regular  armies,  in  the  military  service  of  the 
country,  A  well  regulated  militia  was  (as  is  stated  in  one  of  the  amend- 
ments) regarded  as  necessary  to  the  security  of  a  free  state.  It  was, 
therefore,  proper  that  provision  should  bo  made  in  the  constitution  for 
its  organization,  and  for  the  authority  to  be  exercised  over  it  by  the 
state  governments  and  congress  respectively.  It  was  not  probable  that 
in  the  exercise  of  its  power  to  raise  armies  congress  would,  under  ordi- 
nary circumstances,  material!}'-  diminish  the  number  of  the  militia.  But 
it  cannot  be  true  that,  with  the  view  of  preserving  the  militia  entire,  it 
was  intended  to  deny  to  congress  the  right  to  take  individuals  belonging 
to  it  for  the  regular  army.  This  construction  would  prevent  congress 
from  obtaining  from  its  ranks  not  only  conscripts,  but  volunteers  also  ; 
and  as  the  militia  embraces  the  whole  arms-bearing  population,  it  would 
render  it  necessary  that  the  army  should  contain  none  but  foreigners, 
hired  for  the  purpose,  and  having  no  interest  in  common  with  the  people 
of  the  country.  No  one  can  imagine  that  such  was  the  intention  of  the 
framers  of  the  constitution. 

The  true  interpretation  of  the  constitution  in  reference  to  this  matter 
would  seem  to  be,  that  the  power  to  use  the  whole  military  fores  of  the 
country  was  conferred  upon  congress,  and  it  was  left  to  their  discretion 
to  fix,  as  the  varying  necessities  of  the  country  might  require,  the  rela- 
tive proportion  of  regular  troops  and  militia  to  be  employed  in  the  ser- 
vice. If  it  should  appear  at  any  time  to  be  proper  to  increase  the  army, 
it  might  be  done  by  taking  men  from  the  militia,  either  as  volunteers  or 


11 

as  conscripts — the  action,  in  either  case,  being  upon  the  individual  citi- 
zen, and  not  upon  the  militia  as  an  organized  body.  As  it  was  impossi- 
ble to  foresee  how  large  an  army  the  exigencies  of  the  country  might 
demand,  the  number  of  militiamen  to  be  thus  transferred  to  its  ranks 
was  wisely  left  to  the  discretion  of  congress. 

It  may  be  difficult  to  say  to  vfhat  extent  congress  have  the  right,  in 
the  exercise  of  this  discretion,  to  affect  the  militia  as  an  organized  body. 
It  is  sufficient  for  the  purposes  of  this  decision  to  see,  as  we  do,  that 
neither  of  the  acts  of  congress,  the  validity  of  which  has  been  called  in 
question,  does  destroy  or  impair  the  organization  of  the  militia — con- 
struing them,  as  it  is  proper  they  should  be  construed,  in  connection 
with  the  exemption  acts,  which  are  in  pari  materia.  It  will  be  time 
enongli  when  a  case  is  brought  before  us,  in  which  the  organization  of 
the  militia  is  destroyed  or  impaired  by  congress,  to  enquire  what  limits 
are  fixed  to  their  action  in  this  respect. 

It  is  further  objected  that  if  congress  have  the  right  of  compelling 
citizens  to  serve  in  their  armies,  the  state  governments  are  at  their 
mercy,  and  exist  at  their  will.  That  they  may  conncribe  all  the  officers 
of  tlie  state — executive,  legislative  and  judicial — and  thus  put  a  stop  to 
the  action  of  its  government. 

Congress  can  have  no  such  power  over  state  officers.  The  state  govern- 
ments are  an  essential  part  of  our  political  system ;  for  upon  the  sepa- 
rate and  independent  sovereignty  of  the  states,  the  foundation  of  our 
Confederacy  rests.  All  powers  not  delegated  to  the  Confederate  States 
by  the  constitution,  nor  prohibited  by  it  to  the  states,  are  reserved  to 
the  states  respectively,  or  to  the  people  thereof;  and  the  Confederate 
States  guarantee  to  each  state  a  republican  form  of  government. 

It  is  absurd  to  suppose  that  the  government  ©f  the  Confederate  States 
can  rightfully  destroy  the  governments  of  the  states  which  created  it ; 
and  all  the  powers  conferred  on  it  must  be  understood  to  have  been 
given  with  the  limitation  that  in  executing  them,  nothmg  shall  be  done 
to  interfere  with  the  independent  exercise  of  its  sovereign  powers  by 
each  state.  Congress  can  have  no  right,  therefore,  to  deprive  a  state 
of  the  services  of  any  officer  necessary  to  the  action  of  its  government. 
And  the  state  itself  is  the  sole  judge  as  to  the  officers  that  are  necessary 
for  that  purpose. 

But  it  is  said  that  this  is  not  enough  to  satisfy  the  rights  and  duties 
of  a  state  as  a  sovereign.  That  each  state  has  the  right  to  command 
the  services  of  all  her  citizens,  and  on  the  other  hand  is  bound  to  afford 
them  protection.     That  this  right  and  duty  arre  both  interfered  with  by 


12, 

the  exercise  of  the  power  of  conscription  by  congress,  for,  by  it  the 
citizen  may  be  drngged  from  his  liome  and  forced  into  the  army,  for 
ser'^ice,  perhaps,  in  a  foreign  land  against  the  Avish  of  the  state  to  Avhich 
he  belongs. 

If,  however,  the  power  in  question  has  been  conferred  upon  congress 
by  the  constitution,  it  is  a  mistake  to  say  that  it  can  be  exercised  without 
the  consent  of  the  states.  For  each  state,  by  ratifying  the  constitution, 
gave  her  consent.  We  are  brought  again  to  the  inquiry — is  the  power 
granted  to  congress  by  the  constitution  ?  'For  the  reasons  already  indi- 
cated we  think  it  clear  that  it  is.  And  it  was  wisely  granted,  for  the 
rights  of  the  states  and  the  liberties  of  the  citizen  can  be  much  more 
effectually  asserted  and  defended  than  they  could  possibly  be  if  this 
power  had  bee^  withheld  from  congress. 

The  objection  that  the  states  have  been  deprived  of  the  power  of  ap- 
pointing the  officers  is  founded  on  the  mistake  of  regarding  the  forces 
called  out  as  "  the  militia."  They  are  not  militia,  but  an  army,  created 
under  the  power  given  to  "raise  armies," — not,  it  is  true,  a  standing 
army  to  be  kept  u]^_  in  time  of  peace,  but  a  provisional  army,  brought 
into  the  field  for  sei'vice  during  the  existing  war.  No  jDOwer  is  reserved 
to  the  states  by  the  constitution  to  appoint  officers  of  the  army,  whether 
it  be  regular  or  provisional. 

Lastly,  it  is  objected  to  the  acts  under  consideration,  that  congress  do 
not  themselves  exercise  the  power  of  raising  an  army,  but  delegate  it  to 
the  president. 

We  do  not  think  that  they  are  susceptible  of  any  snch  interpretation. 
They  delegate  no  authority  to  the  president  to  raise  an  army,  but  merely 
authorize  him  to  call  out  and  place  in  the  field  the  army  raised  under 
and  by  the  laws.  There  can  be  no  valid  objection  to  the  discretion 
given  him  to  call  out,  from  time  to  time,  as  the  necessities  of  the 
country  might  demand,  those  made  liable  to  service  by  the  laws.  It 
was,  on  the  contrary,  eminently  proper,  that  as  commander-in-chief  he 
should  be  invested  with  such  discretion. 

For  the  foregoing  reasons  we  are  of  opinion  that  the  act  "  to  further 
provide  for  the  public  defence,"  approved  on  the  16th  day  of  April  1862, 
and  the  act  amendatory  thereof,  approved  on  the  27th  day  of  September 
1862,  are  clearly  authorized  by  the  constitution  of  the  Confederate  States. 

The  next  question  for  our  consideration  is,  whether  congress  possessed 
the  constitutional  power  to  pass  the  act,  approved  on  the  5th  day  of 
January  1864,  entitled  "  an  act  to  put  an  end  to  the  exemption  of 
those  who  have  heretofore  furnished  substitutes." 


;      13 

It  is  insisted  that  the  government,  in  permitting  substitutions,  entered 
into  a  contract  with  each  individual,  in  whose  stead  a  substitute  was  ac- 
cepted, that  he  should  not  (except  in  certain  contingencies  specified  in 
the  regulations  made  by  the  secretary  of  Avar)  be  required  to  render 
military  service  during  the  period  of  time  for  which  the  substitute  w&s 
put  in,  and  that  the  law  in  question  is  unconstitutional  and  void  because 
it  violates  this  contract. 

The  constitution  of  the  Confederate  States  provides  that  no  state  shall 
pass  any  law  impairing  the  obligation  of  contracts,  but  does  not  impose 
any  restriction  upon  the  power  of  congress  in  this  respect. 

It  is  insisted,  however,  that  the  omission  to  prohibit  expressly  the 
passage  of  such  laws  by  congress,  resulted  simply  from  the  belief  that 
such  prohibition  was  unnecessary,  and  does  not  authorize  the  inference 
that  congress  have  the  power  to  pass  them  ;  that  if  any  legislature  can 
violate  its  contracts  it  is  because  of  its  unlimited  powers  and  its  being 
beyond  the  pale  of  being  questioned  in  any  of  its  tribunals;  that  the 
confederate  government  exists  only  by  virtue  of  powers  conferred  on  it ; 
and  as  no  power  has  been  granted  it  to  break  any  engagement  it  may 
enter  into,  it  lias  no  right  to  break  a  contract  Avhich  it  has  a  constitu- 
tional right  to  make. 

On  the  other  hand,  it  is  said  that  though  it  be  true  thiit  the  confede- 
rate government  has  no  right  to  exercise  any  power  Avhich  has  not  been 
granted,  yet  th;it  if  in  the  exercise  of  a  granted  power,  a  law  should 
be  passed  impairing  the  obligations  of  a  contract,  such  law  will  be  valid 
and  cannot  be  set  aside  by  the  courts. 

In  support  of  this  position  they  compare  the  clause  of  the  constitu- 
tution,  declaring  that  no  state  shall  "pass  any  bill  of  attainder,  c'x  jjost 
facto  law  or  law  impairing  the  obligation  of  contracts,"  with  the  clause 
Avhich  declares  that  "no  bill  of  attainder,  ex  post  facto  law,  or  law  deny- 
ing or  impairing  the  right  of  property  in  negro  slaves  shall  be  passed" 
by  congress.  And  they  insist  that  it  cannot  be  supposed  that  the  Avords 
"or  laAv  impairing  the  obligation  of  contracts,"  Avould  have  been 
omitted  from  the  latter  clause  if  it  had  been  intended  that  the  power  of 
congress  over  contracts  should  be  as  restricted  as  that  of  the  states. 

In  the  view  Ave  take  of  the  matter  before  us,  it  is  unnecessary  to 
decide  the  question  as  to  the  extent  of  the  poAver  of  congress  in  this 
respect,  and  Ave  express  no  opinion  upon  it. 

Substitution  was  permitted  as  an  act  of  grace  and  favor  on  the  part 
of  the  government  and  not  as  a  matter  of  contract.     The  government 


14 

received  nothing  except  the  service  of  one  man,  in  the  place  of  another, 
to  whose  service  it  Avas  entitled.  The  consideration  paid  by  the  princi- 
pal for  the  service  of  the  substitute  was  a  matter  of  private  arrange- 
ment between  them  with  which  the  government  had  nothing  to  do. 

It  is  true  that,  under  a  regulation  made  by  the  secretary  of  war,  the 
substitute  was  not  received  for  less  than  three  years  or  the  war,  although 
the  party  putting  him  in  may  not  have  had  so  long  to  serve.  And  it  is 
said  that  in  this  way  the  government  received  more  than  a  mere  equivalent 
for  the  service  of  the  principal.  The  advantage  gained  by  the  govern- 
ment is  rather  seeming  than  substantial,  for  the  government  lias  the 
undoubted  right,  on  the  expiration  of  the  time  for  which  the  principal  is 
liable,  to  make  a  new  call  upon  him  and  compel  him  to  serve  so  long  as 
the  necessities  of  the  country  ma}^  require.  The  only  advantage  then 
it  can  be  said  to  have  gained  is  that  it  has  relieved  itself  from*the  in- 
convenience of  having  to  make  a  new  call,  as  soon  as  it  might  other- 
wise have  been  required  to  make  it,  and  this  advantage  cannot  be  re- 
garded as  material.  Indeed,  it  was  found  that  substitution,  on  these 
terms,  was  so  disadvantageous  to  the  service  that  before  the  passage  of 
the  act  now  under  consideration,  one  was  passed  prohibiting  entirely  all 
future  substitution.  It  was  originally  permitted  as  a  privilege  to  indi- 
viduals, and  not  from  any  benefit  the  government  expected  to  derive 
from  it,  and  it  did  not  cease  to  be  a  privilege  because  of  the  terms  im- 
posed as  the  condition  of  granting  it.  It  is  said,  however,  that  where 
the  substitute  is  in  service  at  the  time  that  the  principal  is  again  called 
in,  the  government  gets  the  service  of  two  men  when,  but  for  the  sifb- 
stitution,  it  would  have  had  the  service  of  one  of  them  only.  This  is 
an  incident  of  the  substitution  which  may  result  favorably  to  the  gov- 
ernment in  the  case  supposed ;  but  it  is  not  perceived  that  either  the 
principal  or  the  substitute  has  a  right  to  complain.  The  substitute  is 
required  to  serve  no  longer  than  he  has,  for  a  consideration  satisfactory 
to  himself,  agreed  to  serve ;  and  the  principal  has,  as  will  be  shown,  re- 
ceived all  he  has  a  right  to  claim  under  the  exemption  granted  him. 

Even  if  the  privilege  of  substitution  had  been  granted  upon  a  valua- 
ble consideration  paid  directly  to  the  government,  congress  would  have 
a  right  to  put  an  end  to  the  exemption,  granted  by  reason  of  it,  when- 
ever in  their  judgment  the  situation  of  the  country  became  such  as  to 
render  it  proper  that  the  party  should  be  again  required  to  serve  in  the 
army. 

However  binding  the  arrangement  of  substitution,  when  made^  may  be 


% 


16 

upon  the  government,  it  cannot  extend  further  than  to  discharge  thi 
person  putting   in  the  substitute  from  the  liability  to  which  he  is  t 
subject  under  the  existing  law. 

No  contract  entered  into  by  congress  can  be  enforced  or  sustained, 
unless  it  appear  that  the  power  to  make  such  contract  has  been  conferred 
by  the  constitution.  No  power  has  been  granted  them  to  agree  that 
any  person  liable  to  render  military  diit}'-  shall  be  exempted,  for  any 
fixed  time,  from  such  liability,  under  any  and  every  call  for  troops, 
which  the  necessities  of  the  country  may  require  to  be  made. 

The  obligation  of  the  citizen  to  render  military  service  is  a  paramount 
social  and  political  duty.  It  is  a  matter  in  whicli  the  whole  body  politic 
is  interested.  "The  citizens  have  a  right  collectively  and  individually 
to  the  service  of  each  other  to  avert  any  danger  which  may  be  menaced. 
The  manner  in  which  the  service  is  to  be  apportioned  among  them,  and 
rendered  by  them,  is  a  matter  for  legislation."  The  government,  as 
the  agent  and  trustee  of  the  people,  is  charged  with  the  whole  military 
strength  of  the  nation,  in  order  that  it  may  be  employed  so  as  to  ensure 
the  safety  of  all.  The  power  which  it  has  to  enforce  the  performance 
of  the  obligation  to  render  military  service,  is  given  that  it  may  be  used, 
not  abdicated.  No  right  has  been  conferred  on  the  government  to  divest 
itself,  by  contract  or  otherwise,  of  the  power  of  employing,  whenever 
and  as  the  exigencies  of  the  country  may  demand,  the  whole  military 
strejigth  that  has  been  placed  at  its  disposal.  As  the  nature  and  extent 
of  those  exigencies  cannot  be  foreseen,  and  it  is  impossible  to  say  in  ad- 
vance that  the  services  of  every  citizen  capable  of  bearing  arms  may 
not  become  indispensable  for  the  defence  of  the  country,  the  government 
has  no  right  to  enter  into  any  contract  precluding  it  from  requiring 
those  services  if  they  should  be  needed.  If  there  be  such  right,  the 
spectacle  might  be  presented  of  a  nation  subjugated  and  destroyed  at  a 
time  when  it  had  within  its  limits  citizens  amply  sufficient  to  defend  it 
successfully  against  all  the  assaults  of  its  enemies,  but  whose  services 
could  not  be  commanded  because,  forsooth,  the  government  had  con- 
tracted with  them  that  they  should  not  be  required  to  serve  in  the  army. 

It  may  possibly  be  said  that  our  protection  against  this  (ganger  is-  to 
be  found  in  the  reserved  concurrent  power  of  the  states  to  employ  their 
military  strength  for  the  defence  of  the  country.  This  may  perhaps 
lessen  our  danger,  but  it  does  not  meet  the  argument.  The  proposition 
is  that  the  government  of  no  nation  can  abdicate,  or  bind  itself  not  to 
exercise  any  part  of  the  power  entrusted  to  it  for  the  defence  of  the 
community.    And  it  cannot  be  supposed  that  it  was  intended,  under  our 


^^tom  of  government,  to  confer  the  right  upon  congress  to  strip  them- 

.^■pres  of  their  power,  and  trust  to   the  irregular,  uncertain   afld  tardy 

motion  of  the  several  states  to  bring  out  the  military  force  of  the  country. 

It  may  he  said,  also,  that  the  case  supposed  is  an  extreme  one,  and 
that  it  is  not  at  all  probable  that  any  government  "would  ever  enter  into 
contracts  depriving  itself,  to  any  extent,  of  the  right  to  exercise  the 
powers  with  which  it  was  invested.  This  is  true.  The  case  supposed  is 
an  extreme  one,  not  likely  to  arise,  even  if  the  right  in  question-  were 
possessed  by  governments.  But  it  tests  the  principle.  In  determining 
the  powers  of  governments  we  ought  not  only  to  look  to  what  Avill  proba- 
bly be  done,  but  we  should  look  also  to  what  may  possibly  be  done  under 
them. 

No  government  can  have  the  right  to  endanger  the  life  of  the  nation 
it  represents,  by  contracting  that  it  will  not  exercise  the  powers  confided 
to  it. 

For  a  proposition  so  obviously  true,  it  can  hardly  be  necessary  to  cite 
authority ;  but  the  authorities  are  ample  to  show  that,  in  less  important 
matters  than  that  of  military  defence,  "a  legislative  body  cannot  part 
with  its  powers,  by  any  proceeding,  so  as  not  to  be  able  to  continue  the 
exercise  of  them,"'  and  if  any  attempt  be  made  to  do  so,  the  act  is  null 
and  void.  "It  can  and  should  exercise  them,  again  and  again,  as  often 
as  the  public  interests  require."  "It  cannot  abridge  its  own  legislative 
power  by  making  permanent  and  irrepealable  contracts  in  reference  to 
matters  of  public  interest."  East  Hartfoj^d  vs.  Hartford  Bridge  com- 
pany,  10  How.  Sup.  C.  R.  511.  Gooszler  vs.  The  corporation  of  Gtcorge- 
toivn,  6  Wheat,  593.  In  the  case  of  Ohio  life  insurance  and  trust  com- 
pany vs.  Debolt,  16  How.  S.  C,  426,  in  which  the  question  was  as  to 
the  validity  of  the  state  law,  Chief  Justice  Taney  says  : 

"The  powers  of  sovereignty  confided  to  the  legislative  body  of  a 
state  are  undoubtedly  a  trust  committed  to  them,  to  be  executed  to  the 
best  of  their  judgment  for  the  public  good,  and  no  one  legislature  can, 
by  their  own  act,  disarm  their  successors  of  any  of  the  powers  or  rights 
of  sovereignty  confided  by  the  people  to  the  legislative  body,  unless 
tliey  are  authorized  to  do  so  b}^  the  constitution  under  which  they  are 
elected." 

We  think,  therefore,  that  if  it  appeared  that  congress  had  attempted 
to  make  a  binding  and  irrepealable  contract  to  exempt  from  liability  to 
all  subsequent  calls  for  military  service,  those  who  put  in  substitutes, 
during  the  time  for  which  they  were  put  in,  such  contract  would  be  void, 
because  of  the  want  of  power  in  congress  to  make  it.     But  there  has 


17 

boon  no  attempt  to  make  any  such  contract.  Exemption  from  futui'C 
liability  on  the  part  of  the  citizen  to  render  military  service  at  the  call 
of  the  country,  is  not  a  subject  matter  of  contract  within  the  meaning 
of  the  clause  of  the  constitution  prohibiting  the  passage  of  any  law  im- 
pairing the  obligation  of  contracts.  By  the  term  "contracts"  in  that 
clause  it  is  not  meant  to  include  rights  and  interests  growing  out  of 
measures  of  public  policy.  Acts  in  reference  to  such  measures  are  to 
be  regarded  as  rather  in  the  nature  of  legislation  than  of  compact,  and 
although  rights  or  interests  may  have  been  acquired  under  them,  these 
rights  and  interests  cannot  be  considered  as  violated  by  subsequent 
legislative  changes  which  may  destroy  them.  Whatever  in  the  nature 
of  a  contract  could  be  considered  to  exist,  there  must  be  implied  in  it  a 
condition  that  the  power  is  reserved  to  the  legislature  to  change  the  law 
thereafter  as  the  public  interests  may,  from  time  to  time,  appear  to 
require. 

In  delivering  tlie  opinion  of  tlie  wliole  court  in  the  case  of  Butler  vs.- 
Fennsijlvania^  10  How.  Sup.  Ct.  R.  416,  Mr.  Justice  Daniel  says ; 

"The  contracts  designed  to  be  protected  by  the  tenth  section  of  the 
first  article  of  the  federal  constitution  are  contracts  by  which  perfect 
rights,  certain,  definite,  fixed  rights  of  property  are  vested.  These  are 
clearly  distinguishable  from  measures  or  engagements,  adopted  or  under- 
taken by  the  body  politic  or  state  government,  for  the  benefit  of  all? 
and  from  the  necessity  of  the  case,  and  according  to  universal  under" 
standing,  to  be  varied  or  discontinued  as  the  public  good  may  require. 

Accordingly,  it  was  held  in  that  case  that  an  appointment  to  a  piiblic 
office,  which  by  the  existing  law  of  the  state,  was  to  be  held  for  one 
year,  with  a  fixed  per  diem  compensation,  does  not  amount  to  a  con- 
tract by  tho  state  thus  to  employ  and  pay  the  officer  during  the 
year.  So  that  a  law  repealing  the  ftrmer  Uw  and  directing  that  the 
office  should  be  vacated  before  the  expiration  of  a  year,  and  in  the  mean- 
time that  the  officer  should  receive  a  smaller  per  diem  compensation  than 
he  was  entitled  to  under  the  first  law,  was  held  Valid.  And  the  officer 
who  continued  to  discharge  the  duties  of  the  office,  from  the  day  fixed 
by  the  latter  statute  for  the'  reduction  of  his  compensation.  Until  the  day 
when  the  office  was  vacated,  was  held  to  be  entitled  to  the  reduced  com- 
pensation only,  and  not  to  that  fixed  by  the  statute  under  which  he  re- 
ceived his  appointment.  See  also  East  Hartford  vs.  Hartford  Bridge, 
10  IIow..  S.  C.  511,  end  the  opinion  of  Mr.  Justice  Campbell,  in  State 
bank  of  Ohio  vs  Knoop^  Ifi  Howard,  S.  C,  405. 

So,  divorces  granted  by  the   legislature  of  a  state   do  not  (according 
3 


18 

to  the  preponderance  of  authority,  and  as  we  think,  in  .  ccordance  with 
sound  principle,)  impair  the  obligation  of  contracts  ;  because  mar- 
riage, although  usually  denominated  a  contract,  and  certainly  one  in  some 
senses,  is  also  a  status  or  civil  relation,  and  therefore  subject  to  legisla- 
tive control.     Bishop  on  Marr  and  Div.,  §771  to  §775. 

Where  a  proclamation  ^Yas  issued  by  the  King  of  Great  Britain, 
declaring  that  the  net  proceeds  of  all  prizes  taken  should  belong  to  the  cap- 
tors ;  and  parties  had  at  their  peril  taken  a  prize  from  the  enera}^  and  had 
incurred  expenses  in  securing  it,  it  was  held  that  the  crown  might,  if  it 
thought  proper,  for  reasons  of  state  and  public  policy,  restore  the  prize 
without  the  consent  of  the  captors,  and  without  making  them  compensa- 
tion, on  the^round  that  the  prize  being  the  property  of  the  crown,  and  the 
only  title  of  the  parties  to  it  being  derived  from  its  grace  and  bounty,  it 
was  regarded  as  a  condition  annexed  to  the  gift,  that  it  might  be  recalled 
and  revoked  by  the  crown  if  considerations  of  public  policy  rendered  it;, 
in  its  opinion,  proper  that  it  should  be  revoked.  And  this  was  decided 
not  upon  any  peculiar  doctrine  of  the  English  law  or  constitution,  but  as 
a  general  and  necessary  principle  of  public  jurisprudence.  Case  of  the 
JElsebee  diase,  5,  Rob.  (Adm.)  173.  This  case  was  decided  by  Lord  Sto- 
well,  and  is  cited  and  commented  upon  with  approbation  by  Lord  Chan- 
cellor Brougham,  in  the  case  of  Alexander  vs.  The  Duke  of  Welling- 
ton, 2  Russ.  and  Myl.  35. 

So,  where  a  seizure  was  made  by  a  revenue  officer,  under  a  promise 
contained  in  a  law  of  the  United  States  that  on  conviction  he  should 
share  the  forfeiture,  and  a  condemnation  was  regularly  had,  adjudging 
the  forfeiture  to  have  been  incurred,  it  was  held  that  a  discharge  of  the 
forfeiture  by  the  secretary  of  the  treasury,  without  making  compensa- 
tion to  the  revenue  officer,  who  had  incurred  trouble  and  expense  in 
making  the  seizure  and  procuring  the  condemnation,  was  no  violation  of 
vested  rights  or  impairment  of  the  obligation  of  a  contract  within  the 
meaning  of  the  constitutional  inhibition.  United  States  vs.  Morris,  10 
Wheaton,  246. 

See  also  the  cases  of  State  bank  of  Ohio  vs.  Knoop,  16  How.,  S.  C. 
R.,  369,  and  the  Ohio-life  insurance  and  trust  company  vs.  Debolt,  16 
How.,  S.  C.  R.,  416,  and  especially  the  opinions  of  Justices  Campbell, 
Catron  and  Daniel  in  those  cases. 

For  the  marked  distinction  between  an  engagement  to  render  military 
service  and  a  contract,  the  cases  of  the  United  States  vs.  Cottingham, 
1  Rob.  Va.,  R.,  615,  and  United  States  vs.  Blackeny,  3  Gratt.,  405,- 
decided  by  our  own  court,  may  be  referred  to. 


19 

To  borrow  the  language  of  Mr.  Justice  Campbell,  in  the  case  of  the 
State  bank  of  Ohio  vs.  Knoop,  and  apply  it  to  the  cases  before  us : 

"A  plain  distinction  exists  between  statutes  which  create  hopes  and 
expectations  and  those  which  form  contracts."  Congress  allow  exemp- 
tions from  military  service  to  those  who  have  furnished  substitutes,  "on 
existing  considerations  of  policy,  without  annexing  restraints  on  their 
will,  or  abdicating  their  prerogative,  and  consequently  are  free  to  modify, 
alter  or  repeal  them." 

Whatever,  therefore,  may  have  been  the  expectation,  at  the  time,  in 
reference  to  the  extent  of  the  exemption  obtained  by  putting  in  a  sub- 
stitute, there  was  clearly  no  '-contract,"  the  obligation  of  which  has 
been  impaired,  and  no  vested  right  which  has  been  violated,  by  the  pas- 
sage of  the  law  putting  "  an  end  to  the  exemption  from  military  service 
of  those  who  have  heretofore  furnished  substitutes." 

But  if  all  this  were  otherwise,  and  the  permission  granted  by  congress 
ifeo  individuals  to  put  in  substitutes,  could  be  held  to  amount  to  a  con- 
tract by  which  congress  was  irrevocably  bound,  what  would  be  the  tr»e 
interpretation  of  that  contract  ? 

The  well  estabhshed  rule  of  construction,  is  that  all  grants  of  privi- 
leges and  exemptions  from  general  burthens,  are  to  be  construed  liberally 
in  favor  of  the  public,  and  strictly  as  against  the  grantee.  Whatever 
is  not  plainly  expressed  and  unequivocally  granted,  is  to  be  taken  to 
have  been  withheld. 

Charles  Reives  Bridge  vs.  AVarren  Bridge,  11  Pet.  420. 

The  Rich.  R.  R.  Co.  vs.  The  Louisa  R.  R.  Co.,  18  How.  S.  C.  R.  71. 

State  Bank  of  Ohio  vs.  Knoop,  16  How.  S.  C.  R.  369. 

Ohio  Ins.  Co.  vs.  Debolt,  16  How.  S.  C.  R.  416. 

It  would  be  especially  improper  to  infer,  in  the  absence  of  the  most 
distinct  indication  of  intention,  that  congress  intended  in  any  grant  to 
go  further  than  the  constitution  allows  them  to  go. 

But  it  is  not  necessary  to  apply  a  strict  rule  of  construction.  No 
fair  interpretation  of  the  law  can  make  it  a  grant  of  exemption  from 
liability  to  service,  under  laws  which  might  thereafter  be  passed,  as  the 
necessities  of  the  country  might  from  time  to  time  require. 

The  9th  section  of  the  act  of  16th  April  1862,  provides  "  that  per- 
soBs  not  liable  for  duty  may  be  received  as  substitutes  for  those  who  are, 
under  such  regulations  as  may  be  pr^^ribed  by  the  secretary  of  war." 

This  is  the  whole  provision  on  the  subject.  There  is  not  one  word  to 
show  that  it  was  intended  to  extend  the  exemption  from  liability,  by 
reason  of  having  furnished  substitutes,  to  any  liability  other  than  that 


20 

created  by  the  act.  On  tlie  contrary,  the  langij/»gc  is,  "persons  not 
liable  for  duty  may  be  received  as  substitutes  for  those  who  are.  What 
duty  and  liability  are  referred  to  ?  The  duty  and  liability,  of  course, 
imposed  by  the  law,  of  which  this  section  forms  a  part,  and  no  other. 
When  the  liability  was  extended  to  other  persons  by  the  amendatory 
act  of  27th  September  1862,  the  privilege  of  substitution  was  also  ex- 
tended to  those  then  made  liable,  by  the  provision  that  nothing  therein 
.contained  should  be  understood  as  repealing  or  modifying  any  part  of 
-the  act  of  16th  April  1862,  except  so  far  as  was  therein  expressly 
stated.  Nor  is  there  anything  in  the  regulations  made  by  the  secretary 
of  war,  under  the  authority  conferred  on  him  by  these  acts,  from  which 
it  can  be  inferred  that  the  exemption  could  be  made  to  extend  to  any 
liability  other  than  that  created  by  tlie  acts  themselves. 

If  it  had  been  supposed  that  those  furnishing  substitutes  were  to  be 
relieved  from  liability  to  future  calls,  during  the  period  of  time  for 
which  the  substitute  was  furnished,  an  exemption  paper  so  stating,  in 
express  terms,  would  have  been  given.  Instead  of  such  a  paper,  Ave  find 
that  nothing  more  was  ever  given  than  a  simple  discharge  from  the  armjr. 

Again,  wj^atev^r  may  be  the  power  of  congress,  no  one  can  pretend 
that  the  secretary  of  war  iiad  any  right,  without  express  authority  of 
law,  to  make  a  contract  for  exemption,  whicli  would  relieve  the  party 
from  liability  under  any  call  for  service  that  might  be  made  by  congress 
during  the  time  for  v/hich  the  secretary's'  exemption  lasted.  Now,  the 
law  permitting  substitution  merely  gave  the  sanction  of  congress  to  a 
practice  which  had  previously  prevailed  under  orders  of  the  secretary. 
It  made  no  change  in  that  practice,  and  there  is  nothing  to  show  that 
it  was  designed  to  extend  the  exemption,  by  reason  of  substitution,  be- 
yond the  limits  within  which  it  was  confined  under  it. 

The  nature  of  the  transaction,  the  terms  of  the  act,  and  the  regu- 
lations and  practice  under  it,  all  show  that,  a,ccording  to  the  true 
intent  and  meaning  of  the  parties,  the  persons  furnishing  a  substi- 
tute Avas  to'be  relieved  from  the  liability  then  resting  on  hiui,  under  ex- 
isting laAvs,  to  render  military  service,  and  from_  that  only.  There  is 
nothing  to  show  that  it  was  designed  to  exempt  him  from  any  service 
which  the  future  wants  of  the  country  might  make  it  proper  for  congress 
to  require  of  him.  He  may,  it  is  true,  have  entertained  the  belief  tUat 
the  necessities  of  the  country  v/^kl  not  be  such  as  to  require  another 
call  to  be  made  upon  him,  and  S(^ave  hoped  and  expected  that  by  put- 
tinj;  in  the  substitute,  he  would  in  f  ict  be  relicvfed  from  the  iV^rformance 
of  military  service  during  the  time  for  which  ho  was  piit  in.       Tlie  dis- 


21 

appointment  of  these  hopes  and  expectations  can  give  him  no  right  to 
comphain. 

If  he  has  sustained  loss,  it  is  damnum  abeque  injuria.  The  govern- 
ment has  been  guilty  of  no  breach  of  faith ;  for,  if  the  transaction  be 
called  a  contract,  he  has  had  the  benefit  of  all  that  he  contracted  for, 
namely,  exemption  from  service  until  the  situation  of"  the  country  be- 
came such  as  to  make  it  necessary  that  he  should  again  be  called  upon 
to  take  part  in  its  defence. 

The  act  putting  an  end  to  the  exemption  from  military  service  of 
those  who  have  furnished  substitutes,  commences  with  the  recital,  that 
"  -whereas,  in  the  present  circumstances  of  the  country,  it  requires  the 
aid  of  all  -who  are  able  to  bear  arms,"  thus  showing,  on  its  face,  that 
but  for  the  pressing  necessity  of  the  country,  the  exemption  Avould  not 
have  been  taken  away. 

It  would  be  beyond  the  jurisdiction  of  the  court  to  en([uire  whether 
congress  were  right  or  wrong  in  supposing  such  necessity  to  exist.  Of 
its  existence,  congress,  to  whose  discretion  it  is  confided  to  provide 
means  adequate  to  the  defence  of  the  country,  have  the  exclusive  right 
to  judge. 

But  it  is  objected  that  the  law  is  unconstitutional  and  void,  because 
it  makes  no  provision  for  compensating  those  whose  exemption  is  taken 
away.  It  is  said  that  the  privilege  of  exemption  is  a  vnJuable  right, 
and  if  the  public  necessity  requires  that  the  citizen  should  be  deprived 
of  it,  it  can  be  taken  only  upon  making  to  him  a  just  compensation. 

We  have  seen  that  the  transaction  is  one  relating  to  a  matter  of  pub- 
lic concern,  as  to  Avhich  congress  could  not,  if  they  would,  make  any 
valid  contract  which  would  entitle  the  party  to  compensation;  and  fur- 
ther, that  they  have  not  attempted  to  make  any  such  contract.  It  has 
also  been  shown,  that  even  if  the  transaction  could  be  regarded  as  a 
contract,  the  government  has  fully  complied  with  its  engagement,  and 
has  deprived  the  party  of  no  right ;  for  the  condition  has  happened, 
upon  the  happening  of  Avhich  by  the  contract  itself,  according  to  its 
true  interpretation,  the  exemption  was  to  cease. 

If  there  should  be  any  case  presenting  an  equitable  ground  for  relief 
or  indemnity,  it  is  a  matter  of  which  the  courts  can  take  no  cognizance. 

The  only  remaining  question  is,  whether  the  petitioner  Burroughs, 
who  claims  to  have  *pu^i^  his  su^^tute^  uj^dor  Ihe  law  of  the  state, 
passed  on  the  10th  day  or  l^ebruarJIpfG^,  ^|fflds  on  a  diiferent  footing 
as  to  this  matter,  from  those  who  have  put  m  substitutes  under  the  act 
oi  concrcss.  ■  v\    » 


22 

It  has  been  very  much  disputed,  in  the  argument  of  the  case,  whether 
he  did  really  put  in  a  substitute  under  the  state  law,  in  such  a  way  as 
to  entitle  himself  to  a  discharge  from  service  according  to  its  provi- 
sions. We  consider  it  unnecessary  to  enter  upon  an  examination  fof 
this  question,' because,  s'upposing  him  to  have  acted  in  strict  conformity 
with  the  requirements  of  that  law,  and  to  have  become  entitled  to  a  dis- 
charge from  service  according  to  its  provisions,  we  do  not  think  that  he 
occupies  a  better  position  than  those  do  who  put  in  substitutes  and  ob- 
tained their  discharge  under  the  law  of  congress.  Tlie  law  of  the  state, 
like  the  law  of  congress,  exempted  only  from  the  then  existing  liability 
to  render  military  service,  and  did  not  (as  it  could  not  properly)  under- 
take to  exempt  from  future  liability,  if  the  necessities  of  the  country 
should  make  a  further  call  necessary. 

The  act  of  congress  of  16th  April  1862,  operated  upon  all  white  men 
Avho  Avere  residents  of  the  Confederate  States,  betM'een  the  specified 
ages,  and  not  legally  exempted,  whether  they  were  in  or  out  of  the  army. 
Those  in  the  array,  however  they  had  been  put  there,  whether  under  re- 
quisitions upon  the  states,  or  as  volunteers  turned  over  by  state  authority, 
or  in  any  other  manner,  became  liable  to  service  under  the  act  of  con- 
gress, which  superseded  all  previous  laws  and  all  calls  that  had  been 
made  for  troops. 

Those  who  had  put  in  substitutes  under  state  authority,  had  a  right  to 
expect  to  enjoy  the  benefit  of  it,  in  like  manner  as  if  the  substitution 
had  been  eff'ected  under  the  orders  of  the  secretary  of  war,  or  the  act 
of  congress,  and  this  right  has  always  been  recognized  and  allowed  by 
the  confe'derate  government.  But  they  have  no  claim  to  stand  on  any 
higher  ground  than  those  Avho  put  in  substitutes  under  confederate  au- 
thority. 

We  are  of  the  opinion,  therefore,  that  boih  of  the  petitioners  are 
liable  to  render  military  service,  and  must  be  remanded  to  the  custody 
of  the  officer. 

A  cop}^ — Teste  : 

M.  T.  Starke, 

Clerk  of  the  supreme  court  of  appeals  of  Virginia,  at  Richmond. 


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